J-S68040-16

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,

 Appellant

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DAVID BRANDON JUDY,

 Appellee

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 No. 489 WDA 2016

Appeal from the Order Entered March 30, 2016

in the Court of Common Pleas of Westmoreland County,

Criminal Division, at No(s): CP-65-CR-0003049-2015

BEFORE: SHOGAN, SOLANO, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.: FILED NOVEMBER 18, 2016

The Commonwealth of Pennsylvania appeals from the March 30, 2016 

order which granted the motion to dismiss filed by David Brandon Judy 

(Judy). Upon review, we affirm.

The suppression court summarized the underlying facts of this case as 

follows.

During the hearing on [Judy’s motion to dismiss], 

[Pennsylvania State Police Trooper Gregory Hays (Trooper 

Hays)] testified relative to his interaction with [Judy]. Trooper 

Hays testified that at approximately 1:06 a.m. [on March 20, 

2015, Trooper Hays] observed [Judy’s] vehicle traveling east on 

Route 30. He followed the vehicle for a distance and began to 

clock the vehicle using the calibrated speedometer in his police 

cruiser. Trooper Hays testified that from the time he started to 

clock [Judy’s] vehicle until the time the stop occurred, he 

observed [Judy] for a quarter of a mile. Trooper Hays indicated 

that [Judy] was traveling 60 miles an hour in a 40 mile an hour 

zone. 
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Trooper Hays testified that he also observed [Judy’s] 

vehicle travel across the fog line on three occasions. Based on 

Trooper Hays observations, he initiated a traffic stop. Trooper 

Hays testified that his police cruiser is equipped with a Dash 

Cam video, and it was operating during the incident. 

On cross-examination, Trooper Hays testified that when he 

first came across [Judy’s] vehicle, [Judy] was not swerving, 

weaving, or speeding. At this time, Trooper Hays indicated that 

he had no reason to be suspicious that [Judy] was driving under 

the influence of alcohol. Trooper Hays testified that when he 

initiated the traffic stop, he did not have enough evidence 

against [Judy] to charge him with speeding. Trooper Hays 

testified that [Judy] “touched” the fog line with his tire. 

However, Trooper Hays testified that during his observation, 

[Judy] never left its proper lane of traffic, did not cross over the 

fog line, or touch the berm. Trooper Hays indicated that there 

were no other cars on the road at this time. 

Suppression Court Opinion and Order, 3/30/2016, at 3.1 The stop of Judy’s 

vehicle resulted in Judy’s being charged with several motor vehicle code 

violations, inter alia, DUI.2 On December 3, 2015, Judy filed a motion to 

dismiss. On March 30, 2016, following the hearing and after consideration 

of the parties’ briefs, the suppression court granted Judy’s motion, holding 

as follows.

 

1 The suppression court filed its Rule 1925(a) opinion in which it relied solely 

on its analysis of the issues set forth in the court’s March 30, 2016 opinion 

filed with its order granting Judy’s motion to dismiss.

2 Because the only issue raised at the hearing concerned Trooper Hays’ initial 

stop of Judy’s vehicle and whether he had the requisite probable cause to do 

so, testimony was not elicited from Trooper Hays regarding the observations 

he made when he encountered Judy and any field sobriety tests he may 

have conducted. 
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[The suppression court] finds that Trooper Hays lacked 

probable cause to stop Mr. Judy for speeding. Trooper Hays did 

not clock [Judy’s] vehicle for the requisite distance under the 

Motor Vehicle Code. Additionally, Trooper Hays testified that 

when he initiated the traffic stop, he did not have enough 

evidence against [Judy] to charge him with speeding. There was 

no evidence presented to suggest that [Judy] was traveling 

faster than reasonable and prudent under the conditions which 

existed March 20, 2015. Absent other factors, Trooper Hays’ 

testimony that [Judy] was traveling 60 miles an hour in a 40 

mile an hour zone over a distance of a quarter of a mile, does 

not alone, amount to probable cause to initiate a traffic stop. 

Suppression Court Opinion and Order, 3/30/2016, at 4. This timely-filed 

appeal followed.3 

The Commonwealth presents one issue for this Court’s review: “[t]he 

suppression court err[ed] in finding the trooper lacked probable cause to 

stop [Judy’s] vehicle for speeding because the trooper did not clock the 

vehicle for the request distance under the motor vehicle code[4]in light of 

the Superior Court’s holding in [Commonwealth v. McElroy, 630 A.2d 35 

(Pa. Super. 1993) (en banc)].” Commonwealth’s Brief at 1 (unnecessary 

capitalization omitted).

We consider the Commonwealth’s issue mindful of the following.

 

3 Both the suppression court and the Commonwealth have complied with 

Pa.R.A.P. 1925.

4 See 75 Pa.C.S. § 3368 (“The rate of speed of any vehicle may be timed on 

any highway by a police officer using a motor vehicle equipped with a 

speedometer. In ascertaining the speed of a vehicle by the use of a 

speedometer, the speed shall be timed for a distance of not less than threetenths of a mile.”).
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When the Commonwealth appeals from a suppression order, this 

Court follows a clearly defined scope and standard of review. We 

consider only the evidence from the defendant’s witnesses

together with the evidence of the prosecution that, when read in 

the context of the entire record, remains uncontradicted. This 

Court must first determine whether the record supports the 

factual findings of the suppression court and then determine the 

reasonableness of the inferences and legal conclusions drawn 

from those findings. In appeals where there is no meaningful 

dispute of fact, as in the case sub judice, our duty is to 

determine whether the suppression court properly applied the 

law to the facts of the case.

Commonwealth v. Gorbea-Lespier, 66 A.3d 382, 385-86 (Pa. Super. 

2013) (quotation marks and citations omitted) (quoting Commonwealth v. 

Arthur, 62 A.3d 424, 427 (Pa. Super. 2013)).

The following principles guide our review of this matter.

[W]hen considering whether reasonable suspicion or probable 

cause is required constitutionally to make a vehicle stop, the 

nature of the violation has to be considered. If it is not necessary 

to stop the vehicle to establish that a violation of the Vehicle 

Code has occurred, an officer must possess probable cause to 

stop the vehicle. Where a violation is suspected, but a stop is 

necessary to further investigate whether a violation has 

occurred, an officer need only possess reasonable suspicion to 

make the stop. 

Commonwealth v. Salter, 121 A.3d 987, 993 (Pa. Super. 2015)

Probable cause is made out when the facts and circumstances 

which are within the knowledge of the officer at the time of the 

arrest, and of which he has reasonably trustworthy information, 

are sufficient to warrant a man of reasonable caution in the 

belief that the suspect has committed or is committing a crime. 

The question we ask is not whether the officer’s belief was 

correct or more likely true than false. Rather, we require only a 

probability, and not a prima facie showing, of criminal activity. 
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In determining whether probable cause exists, we apply a 

totality of the circumstances test. 

Commonwealth v. Thompson, 985 A.2d 928, 931 (Pa. 2009) (internal 

quotation marks and citations omitted).

The Commonwealth avers that Trooper Hays possessed the requisite 

probable cause to initiate the traffic stop. In making this argument, the 

Commonwealth relies solely on our holding in McElroy. In McElroy, Officer 

Arnold Duck testified he observed McElroy’s vehicle for approximately five 

seconds travelling at a high rate of speed. 630 A.2d at 37. Specifically, the 

Officer estimated the truck McElroy was driving was travelling at least 80 

miles per hour in a 35-mile-per-hour-zone. Id. Officer Duck immediately 

turned his vehicle around and began pursuing McElroy, eventually initiating a 

stop of McElroy’s vehicle. Id. Officer Duck testified that at the time, he felt 

he had probable cause to stop McElroy for travelling in excess of the speed 

limit. Id. During the traffic stop, “Officer Duck and his partner detected the 

odor of alcohol on [McElroy’s] breath and asked [McElroy] to submit to field 

sobriety tests.” Id. After failing said tests, McElroy was arrested and 

transported to the hospital where a blood test revealed a blood alcohol level 

of .19%. McElroy was charged with, inter alia, DUI. 

McElroy filed a motion to suppress, arguing that “the initial stop of his 

vehicle was illegal because the police officer lacked ‘probable cause to 

believe’ or ‘articulable and reasonable ground to suspect a violation of the 
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[vehicle code]’”. Id. at 36. The trial court denied McElroy’s motion. After 

being found guilty and sentenced accordingly, McElroy filed an appeal 

challenging the denial of his suppression motion. This Court granted en 

banc consideration of this case to “clarify the standard to be applied when 

determining whether a police officer may legally stop a motor vehicle[.]” Id.

Upon review, the McElroy Court concluded that the suppression motion 

was properly denied, even though Officer Duck’s assessment of McElroy’s 

speed was based only upon his personal observation. In doing so, the Court 

found that while “it is true that a police officer’s opinion testimony alone is 

not sufficient to sustain a conviction for speeding under 75 

Pa.C.S.§ 3362[,]” the question presented is not whether Officer Duck’s 

testimony could sustain a conviction for speeding, but rather whether his 

testimony amounted to ‘reasonable and articulable grounds to suspect a 

violation of the Vehicle Code.’” McElroy, 630 A.2d at 40 (emphasis in 

original). The Court held that the Officer’s opinion that the truck “was 

travelling 80 miles per hour in a 30 mile per hour zone amounted to 

‘articulable and reasonable grounds’ to suspect [McElroy] was speeding, and 

Officer Duck was entitled to stop []and request [McElroy’s] driver’s license, 

vehicle registration and proof of financial responsibility.” Id.
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In concluding the Officer had sufficient probable cause to initiate the 

stop, the McElroy Court expressly overruled this Court’s prior decision in 

Commonwealth v. Whitmyer 609 A.2d 809 (Pa. Super. 1992). 

In Whitmyer[,] a police officer stopped Whitmyer’s 

vehicle because the officer felt the operator was driving 

“erratically” and was travelling at an unsafe speed in violation of 

75 Pa.C.S.[] § 3361. The officer testified that he followed 

Whitmyer for two-tenths of a mile [instead of the three-tenths of 

a mile required by the Vehicle Code] at 70 miles per hour in a 55 

miles per hour zone, before Whitmyer exited the highway. He 

described Whitmyer’s driving as “erratic” and noted that the 

traffic on the highway was medium to heavy at the time. In spite 

of the officer’s testimony regarding his reasons for stopping 

[Whitmyer], the trial court suppressed [] all evidence gained as 

a result of the stop. The trial court reasoned that the police 

officer did not have “probable cause to believe” that Whitmyer 

was in violation of [75 Pa.C.S. § 3361], and, thus, the stop was 

illegal. A panel of this [C]ourt agreed with the trial court that 

the officer’s observations did not amount to “articulable and 

reasonable grounds to suspect” that Whitmyer was driving at an 

unsafe speed. Whitmyer, 609 A.2d at 814-815.

McElroy, 630 A.2d at 41 (footnote omitted). 

In relying on this Court’s holding in McElroy, the Commonwealth 

neglects to mention that our Supreme Court affirmed Whitmyer after this 

Court overruled it with McElroy. See Commonwealth v. Whitmyer, 668 

A.2d 1113 (Pa. 1995) (superseded by statute).5 In affirming this Court’s 

 

5 Since our Supreme Court’s holding in Whitmyer, the statute setting forth 

the requirements a police officer must meet in order to initiate a stop of a 

vehicle has changed. Specifically, the former version of 75 Pa.C.S. 

§ 6308(b) required a police officer have “articulable and reasonable 

grounds” to effectuate a vehicle stop. The present version requires a police 

officer have “reasonable suspicion” that a violation of the motor vehicle code 
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decision in Whitmyer, our Supreme Court held that “the trooper could not

have relied upon his estimate of [Whitmyer’s] speed as that estimate was 

based on a distance of only two-tenths of a mile instead of the three-tenths 

required by the statute.” Id. at 1117 (emphasis added). In concluding as 

such, our Supreme Court made it clear that 

this is not a case where further investigation would lead to a 

discovery of a violation of the Vehicle Code. If the trooper was 

unable to clock [Whitmyer] for three-tenths of a mile or observe 

the conditions that would warrant a citation for driving at an 

unsafe speed, there is no further evidence that could be obtained 

from a subsequent stop and investigation. Thus, we conclude 

that the fruits of the unlawful stop were correctly suppressed.

Id. at 1118. 

Here, Trooper Hays testified that he stopped Judy for speeding, but 

failed to clock Judy for the three-tenths of a mile required by statute. Thus, 

based on our Supreme Court’s holding in Whitmyer, we are constrained to 

affirm the suppression court’s finding that Trooper Hays lacked probable 

cause to stop Judy’s vehicle.

Order affirmed. 

 

is occurring or had occurred in order to initiate a stop. Despite the change 

in language, this Court has continued to hold that a police officer must have 

probable cause to pull over a vehicle for speeding. Salter, 121 A.3d at 993 

(“If a vehicle is stopped for speeding, the officer must possess probable

cause to stop the vehicle. This is so because when a vehicle is stopped, 

nothing more can be determined as to the speed of the vehicle when it was 

observed while traveling upon a highway.”). 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/18/2016